Merchant Terms of Use Agreement

Background:

1

HealthTrader has developed software designed to track activities on the Internet, hereafter known as the “Network”. The Network enables the Merchant to setup its own affiliate programme which will encourage an Affiliate to refer visitors to the Merchant’s website with the purpose of increasing the number of unique visits, leads and transactions on Merchants website.

2

The Merchant wishes to have its own affiliate programme and wishes to use the HealthTrader Network.

IT IS AGREED as follows:

1. Definitions and Interpretation

1.1 In this Agreement the following terms shall have the following meanings:

"Affiliate(s)"

Means the affiliate marketers in the HealthTrader Network;

"Affiliate Commission"

Means the payment due from the Merchant to the Affiliate;

"Affiliate(s) Website(s)"

Means the website(s) of one or more affiliate(s);

"Agency"

Means the advertising or marketing agency that may be contracting for and on behalf of the merchant;

"Commissions"

Means the charges payable by HealthTrader set out in the Commission Schedule;

"Commission Schedule"

Means the schedule of fees payable to HealthTrader detailed in this document;

"Confidential Information "

Means;

(i)

All information of a confidential nature concerning all trade secrets or business dealings, method of business, transactions, plans or affairs of a party and its group companies or other party to whom the party owes a duty of confidence;

(ii)

Any document or information marked ‘Commercial in Confidence’ or otherwise expressly designated as confidential; and

(iii)

Any information which by its nature the recipient ought reasonably to conclude was confidential information of the other party in all cases whether encrypted or not and including all copies of the above on any media (including electronic media) whatsoever;

"Disclosing Party"

Means party in respect of any confidential information the disclosing that item of confidential information;

"Direct Loss"

Means any loss characterised at law as direct loss and excludes all indirect, special or consequential loss;

"Force Majeure"

Means any cause not within the reasonable control of a party and which that party cannot reasonably prevent or overcome, as a result of which such party is unable to perform its obligations under this Agreement but shall exclude and delay or failure caused by any supplier or sub-contractor unless such supplier or sub-contractor is itself affected by an event beyond its reasonable control and which that supplier or sub-contractor cannot reasonably prevent or overcome;

"Registration Data"

Means the information provided by the Affiliate when registering for enrolment in the Programme;

"Service Package"

Means a particular set of services available from us through our website as defined in Clause 7; and

"Initial Term"

Means 12 months, starting from the effective date.

"Liability"

Means all liability including financial liability for breach of contract, negligence, breach of statutory duty and/or other tort, any liability in relation to any indemnity and any other liability howsoever arising;

Means the software created by HT and comprising of the Affiliates and the Merchant;

"Materials"

Means all materials to be provided by the Merchant under this Agreement including any and all marketing and promotion materials;

"Merchant Account"

Means the specific account held by HT on behalf of the Merchant for the payment of the Affiliate commissions (being understood that all the accounts of various merchants might be held by HT joined in one or more separate bank accounts);

"Merchant Corporate Identity"

Means the Merchant Trademark and trade name and corporate name as provided to HT by the Merchant;

"Merchant Website"

Means the Merchants website;

"Services"

Means the services provided by HealthTrader on the marketing network and on Merchants website.

2. HealthTrader Obligations

2.1

HealthTrader shall provide the services in accordance with this Agreement.

2.2

Following the request by the Merchant, HealthTrader shall use all reasonable endeavours to ensure that the materials and Merchant Corporate Identity are available for Affiliates.

2.3

The parties acknowledge and agree that HealthTrader shall make no representation or warranty as to availability of the Affiliate Website, the amount of traffic that shall be passed to the Merchant Website, when such actions shall take place and the presentation of any materials and the Merchant Corporate Identity on the Affiliate Website;

2.4

HealthTrader will not intentionally or negligently act in any way or make any omission which would bring the Merchant or the business of the Merchant into disrepute in any manner or otherwise damage the brand or reputation of the Merchant.

3. Merchant Obligations

3.1

Merchant shall deliver the Materials to HealthTrader at such time on reasonable notice and in such format as shall be reasonably specified by HealthTrader during the course of this Agreement.

3.2

The Merchant shall appoint the Affiliate on whatever terms the Merchant and Affiliate agree and thereafter the Merchant will be responsible for the relationship between it and each Affiliate.

3.3

The Merchant shall establish Affiliate Commission levels with the Affiliate.

3.4

The Merchant shall not reduce commission levels or the length of the cookie period without giving the Affiliate 30 days notice.

3.5

The Merchant shall not restrict bidding on keywords without giving the affiliate 30 days notice.

3.6

The Merchant shall pay the commission as and when they fall due.

3.7

The Merchant shall for the term of this agreement put up and maintain tacking code supplied by HealthTrader onto the sale confirmation page of the merchants website so that each valid sale is recorded and published to HealthTrader.

3.8

The Merchant covenants not to promote another affiliate marketing network in respect of services to affiliates introduced to the Merchant by the HealthTrader Network for the duration of this agreement.

4. Tax/VAT

All commissions are exclusive of any value added or similar tax which shall be charged in addition. Should the merchant be obliged to withhold or deduct any portion of the commission then HealthTrader shall be entitled to receive from the merchant such amounts as will ensure that the net receipt, after tax, to HealthTrader in respect of the commission is the same as it would have been were payment not subject to tax.

5. Intellectual Property Rights

5.1

All intellectual property rights in the HealthTrader link, the HealthTrader website and the HealthTrader trade name and domain name belong and shall belong to HealthTrader. All intellectual property rights in the merchant link, the merchant website and the merchant trade mark, trade name and domain name belong and shall belong to the merchant. All intellectual property rights in the affiliate(s) trade mark, trade name and domain name belong to the affiliates.

5.2

In order to provide the services, the Merchant hereby grants HealthTrader a non-exclusive, worldwide, royalty free licence for the duration of this agreement to use the merchant corporate identity and the materials, including the right to post the merchant corporate identity or material on to HealthTrader’s website. This licence shall not be assignable, transferable or sub-licensable.

5.3

In order to provide the services, the Merchant hereby grants to each Affiliate a non-exclusive, worldwide, royalty free licence for the duration of this agreement to use the merchant corporate identity and the materials, including the right to post the merchant corporate identity or material on to the affiliates website. This licence shall not be assignable, transferable or sub-licensable.

5.4

The ownership of all affiliate data collected by HealthTrader in accordance with this agreement shall vest in HealthTrader.

5.5

The ownership of all customer data collected by the Affiliate or Merchant shall vest in the merchant.

5.6

Other than the licence expressly granted in clauses 5.2 and 5.3, this agreement does not grant any license of, right in or make any assignment of any assignment of any intellectual property rights.

6. Indemnity

6.1

The merchant shall indemnify and hold harmless HealthTrader and its officers, employees, directors, shareholders, representatives, successors, assigns against any and all loss arsing from or connected with:

6.1.1

Any infringement of any intellectual property rights of any third party anywhere in the world caused by or resulting from the use by HealthTrader of the merchant corporate identity and/or materials in accordance with this agreement;

6.1.2

The merchants prove negligence, default or breach of this agreement;

6.1.3

Any claims by an affiliate fro non-payment of the affiliate commission;

6.1.4

Any marketing or promotional activities undertaken by the merchant on the merchant website(s);

6.2

HealthTrader shall indemnify and hold harmless the merchant and its officers, employees, directors, shareholders, representatives, successors, assigns against any and all loss arising from or connected with HealthTrader’s proven negligence, default or breach of this agreement. However, HealthTrader shall not be liable for any indirect, consequential or incidental damages, such as, but not limited to, loss of profits, opportunity, revenue or potential saving.

7. Warranties

7.1

The Merchant warrants and represents that;

7.1.1

This agreement is executed by a duly authorised representative of and represents a binding commitment on the merchant;

7.1.2

Is has full capacity and authority and all necessary licenses, permits and consents to enter into and perform this agreement;

7.1.3

It will comply with all applicable laws, enactments, orders, regulations and other similar instruments in relation to its obligations under this agreement;

7.1.4

The use and possession of the merchant corporate identity and the materials by HealthTrader or an affiliate in accordance with this agreement will not infringe intellectual property rights of any third party anywhere in the world; and

7.1.5

The content on, or available through the merchant website or in materials shall not be libellous, defamatory, obscene, racist, sexually harassing or pornographic and shall not violate civil or criminal laws, including those regulating the use and distribution of content on the internet or in the industry of the merchant.

7.2

HealthTrader warrants and represents that;

7.2.1

This agreement is executed by a duly authorised representative of and represents a binding commitment on HealthTrader;

7.2.2

Is has full capacity and authority and all necessary licenses, permits and consents to enter into and perform this agreement;

7.2.3

It will comply with all applicable laws, enactments, orders, regulations and other similar instruments in relation to its obligations under this agreement;

7.2.4

Even though HealthTrader has no direct control over affiliate website(s), HealthTrader will endeavour to ensure that the content on, or available through the affiliate website(s) or in materials shall not be libellous, defamatory, obscene, racist, sexually harassing or pornographic and shall not violate civil or criminal laws, including those regulating the use and distribution of content on the internet.

7.3

Except for the express provision of this agreement and to the maximum extent permitted by applicable law each party disclaims and excludes all warranties, terms or other conditions, including but not limited to the services or an affiliate website being uninterrupted or error free, any warranty, term or other condition of merchantability, satisfactory quality, fitness for a particular purpose or non infringement, in every case whether implied by statute, common law, custom, collaterally or otherwise.

7.4

HealthTrader reserves the right to remove any and all of the materials from HealthTrader website and or affiliate website and the HealthTrader link from affiliate website at any time during the course of this agreement and following the earlier of termination or expiry of this agreement in the event that the merchant is in breach of any of the provisions of clause 7.1 above.

7.5

Notwithstanding the above provisions, the parties acknowledge and agree that there is no obligation on HealthTrader to monitor the materials or the merchant corporate identity or merchant website or any other deliverable provided by the merchant under this agreement.

8. Liability

8.1

Neither party limits liability for death or personal injury caused by its negligence.

8.2

Subject to clauses 8.1 and 13.3 and with the exception of liability under clauses 6, 7 and 9:

8.2.1

Neither party shall have any liability:

(a)

For any loss or damage other than direct loss;

(b)

For any loss of profit, opportunity, revenue or potential saving (in every case whether direct or indirect) provided that this clause shall not limit the merchants obligation to pay commissions;

(c)

For any breach of this agreement to the extent caused or contributed to by the other party’s breach of this agreement or the other party’s negligence.

9. Confidentiality

9.1

Each party shall keep any confidential information received from or belonging to the other party secret and not disclose such confidential information to anyone (except on a need to know basis for internal use only where necessary to perform its obligations under this agreement to its employees or full time contractors bound by express written secrecy obligations) or use such confidential information other than to perform its obligations under this agreement without the prior written consent of the relevant disclosing party.

9.2

Clause 9.1 shall not apply to any confidential information that:

9.2.1

Disclosure is required to or by any court, tribunal, governmental authority with competent jurisdiction;

9.2.2

It is or becomes generally and freely publicly available through no fault of the recipient or its servants or agents; or

9.2.3

It can be shown to have been independently originated by the relevant recipient or communicated to it in circumstances other than where its disclosure to that recipient imparted a duty of confidence.

9.3

The obligations contained in this clause 9 shall continue in force for twelve (12) months after the termination of this agreement.

10. Termination

10.1

Either party (Terminating Party) may terminate this agreement immediately upon written notice:

10.1.1

If the other commits any material breach of its obligations under this agreement which is not capable of remedy or is capable but is not remedied within 30 days of the terminating party giving notice in writing specifying the breach and requiring remedy within such 30 day period;

10.1.2

If the other becomes unable to pay its debts as they fall due, enters into liquidation whether compulsorily or voluntarily (otherwise than for the purpose of amalgamation or reconstruction where the emerging company assumes the obligations of the party entering into liquidation), compounds with its or has an administrator, administrative receiver, receiver or other encumbrance appointed of all or any part of its assets or undertaking ceases to conduct business in the normal manner, threatens or resolves to do any of the above or takes or suffers any similar action in consequence of debt;

10.1.3

It can be shown to have been independently originated by the relevant recipient or communicated to it in circumstances other than where its disclosure to that recipient imparted a duty of confidence.

10.2

Upon expiry or termination of the agreement:

10.2.1

Neither party shall have any liability:

10.2.2

Each party shall within thirty (30) days of such expiry or termination return (or at the other’s option destroy) all confidential information of the other and all copies of such information.

10.3

Termination of this agreement howsoever arising or caused:

10.3.1

Shall be without prejudice to the rights of either party which have accrued up to the date of termination; and

10.3.2

Shall not operate to affect any provisions that expressly or impliedly survive such termination.

11. Force Majeure

11.1

Neither party shall be liable for any delay or failure to carry out its obligations under this agreement caused by force majeure provided that it promptly gives written notice of the occurrence of the force majeure relied on to the other party and it uses all reasonable endeavours to remove or avoid such force majeure as promptly as practicable.

11.2

If any force majeure event is relied on for longer than 60 days by either party, the other shall be entitled to terminate this agreement forthwith on written notice.

12. Subcontracting

12.1

HealthTrader may subcontract its obligations under this agreement provided that it remains primarily liable to the merchant for performance of this agreement and is fully liable for the acts of such subcontractors as if the were its employees acting within the scope of their authority.

13. Entire Agreement

13.1

This agreement sets out the entire agreement and understanding between the parties and supersedes any previous agreement between the parties relating to its subject matter. Unless otherwise expressly agreed in writing this agreement applies in place of and prevails over any terms or conditions contained in or referred to in correspondence or elsewhere or implied by trade custom or course of dealing.

13.2

In entering into this agreement each party acknowledges and agrees that it has not relied on any representations made by the other. Any such representations are excluded.

13.3

Nothing in this agreement shall limit liability for any representations made fraudulently.

14. Variation

Any variation of this agreement shall only be effective if in writing under the hand of an officer or other duly authorised representative of each of the parties.

15. Severance

If any provision of this agreement is determined to be illegal or unenforceable by any court of competent jurisdiction, it shall be deemed to have been deleted without affecting the remaining provisions.

16. No Partnership or Agency

16.1

Unless expressly provided to the contrary in this agreement:

16.1.1

Nothing in this agreement shall constitute or be deemed to constitute a partnership, joint venture or agency between the parties; and

16.1.2

Neither party shall have any authority or power to bind, contract in the name of or create a liability for or against the other.

17. Assignment

17.1

Neither party shall sub-licence, assign, transfer or charge this agreement or any of its rights under it, or in the case of HealthTrader, subcontract any of its obligations other than in accordance with clause 12 or purport to do any of the acts described in this clause 17.1 without prior written consent of the other, which may be refused at the others absolute discretion.

17.2

This agreement shall endure for the benefit of the merchant’s ultimate holding company and each of its other subsidiary companies from time to time.

18. Counterparts

This agreement may be executed in any number of counterparts, each of which shall, when executed and delivered, be an original and all counterparts shall together constitute one and the same instrument. It is not effective until all parties have executed a counterpart.

19. Third Party Rights

Subject to clause 17.2, no provision of this agreement shall be enforceable by any other third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

20. No Waiver

20.1

No failure or delay by a party in exercising its rights or remedies shall operate as a waiver unless made by written notice.

20.2

No single or partial exercise of any right or remedy of a party shall preclude any other or further exercise of that or any other right or remedy.

21. Law and Jurisdiction

This agreement shall be governed and construed in accordance with the laws of England. The parties irrevocably submit to the exclusive jurisdiction of the courts of England in respect of any matter, claim or dispute arising under, out of or in connection with this agreement (including as to its validity) or the legal relationships established by this agreement.